In Interest of R.M.B.

• Decision Date: 26 March 1987
• Docket Number: No. 11267,11267
• Citation: 402 N.W.2d 912
• Parties: In the Interest of R.M.B., a Child. Alvin E. CHEADLE, Director, Golden Valley County Social Services, Petitioner and Appellee, v. R.M.B., Respondent and Appellee, and B.M.G., a/k/a B.M.B., Respondent and Appellant, and R.B. and A.B., Intervenors. Civ.
• Court: North Dakota Supreme Court

Page 912

402 N.W.2d 912

In the Interest of R.M.B., a Child.

Alvin E. CHEADLE, Director, Golden Valley County Social

Services, Petitioner and Appellee, v. R.M.B., Respondent and Appellee, and B.M.G., a/k/a B.M.B., Respondent and Appellant,

and

R.B. and A.B., Intervenors.

Civ. No. 11267.

Supreme Court of North Dakota.

March 26, 1987.

Orrin B. Lovell, Beach, for petitioner and appellee.

Thomas J. Gunderson, Dickinson, for respondent and appellee.

Wynne and Holm, Rapid City, S.D., for respondent and appellant; argued by John O. Holm.

Mrs. A.B., pro se.

ERICKSTAD, Chief Justice.

B.M.G., formerly B.M.B. [hereinafter Barbara, a pseudonym] appeals from a juvenile court order terminating her parental rights to R.M.B. [hereinafter Rhonda, a pseudonym]. We affirm.

Barbara was 15 years old and unmarried when she gave birth to Rhonda on January 17, 1980. Rhonda's natural father is unknown. Barbara and Rhonda lived together with Barbara's parents in Beach until Barbara was graduated from high school in 1982. Barbara then went to Glendive, Montana, to care for her invalid aunt, and Rhonda remained with Barbara's parents. Barbara subsequently returned to Beach and lived with her parents and Rhonda before moving into her own apartment; however, Rhonda remained with Barbara's parents while Barbara stabilized her life. On January 7, 1983, Barbara married K.G. [hereinafter Kevin, a pseudonym]. Rhonda remained with Barbara's parents after Barbara and Kevin were married, and on November 3, 1983, the district court granted a writ of habeas corpus giving Barbara and Kevin custody of Rhonda.

During February and March 1984 Golden Valley County Social Services [Social Services] investigated allegations that Rhonda was neglected. At that time Barbara and Kevin were getting a divorce and were not living together, and Rhonda was living with Barbara. Ella Huwe, a social worker assigned to investigate the neglect allegations, concluded that the allegations were substantiated. Barbara initially agreed to attend parenting and housekeeping classes and counseling sessions, but she failed to complete those classes. On April 3, 1984, Barbara voluntarily surrendered custody of Rhonda to Social Services, and Social Services placed Rhonda in foster care where she remains.

On April 23, 1984, Barbara informed Social Services that she was leaving for Utah to attend vocational classes at the Clearfield Job Corps Center. Alvin Cheadle, the Director of Social Services, filed a petition, dated April 24, 1984, alleging abandonment and neglect and seeking custody of Rhonda; however, at a hearing on that petition, the parties stipulated that Barbara had voluntarily contacted Social Services and consented to its custody of Rhonda and placement of her in foster care. Based on that stipulation, Rhonda was found to be a deprived child and an order was entered granting Social Services custody of Rhonda for no more than 18 months.

Barbara attended vocational training courses at the Job Corps from April 1984 until June 1985, and again from October 1985 until April 1986. Barbara testified that, from June 1985 until October 1985, she was seeking employment in Utah and did not attend courses at the Job Corps. Barbara also testified that she had regularly telephoned both Social Services and Rhonda when she was living in Utah and made three trips to North Dakota to visit Rhonda. Initially, Barbara also contributed $50 per month from her monthly Job Corps allowance for Rhonda's support but she discontinued support when she left the Job Corps in June 1985 and did not reinstate it when she returned in October 1985. Barbara also testified that, while in Utah, she had not attended parenting and housekeeping classes or counseling sessions. On December 5, 1985, Barbara executed a written consent requesting the court to terminate her parental rights to Rhonda.

Cheadle filed a petition, dated February 10, 1986, seeking termination of Barbara's parental rights. The petition alleged that Barbara had executed a written consent to the termination of her parental rights, that she had abandoned Rhonda, and that she was unable to provide Rhonda with proper care. Barbara withdrew her written consent to termination at an April 1986 hearing on the petition to terminate her parental rights. After that hearing, the juvenile court found that Rhonda was a deprived child and Barbara had abandoned her and entered an order terminating Barbara's parental rights and transferring custody of Rhonda to Village Family Services for purposes of placing her for adoption. Barbara has appealed.

Our scope of review of decisions under the Uniform Juvenile Court Act [Ch. 27-20, N.D.C.C.] is governed by Section 27-20-56(1), N.D.C.C., which provides that our review is based upon the files, records, and transcript of the evidence presented to the juvenile court, giving appreciable weight to the findings of the juvenile court. We are not limited to determining whether or not the juvenile court's findings are clearly erroneous, but instead review the evidence in a manner similar to the former procedure of trial de novo. In Interest of J.K.S., 356 N.W.2d 88 (N.D.1984). Although we are not bound by the juvenile court's findings, we nevertheless recognize that it had the opportunity to observe the witnesses' demeanor whereas we have only the cold transcript before us. Asendorf v. M.S.S., 342 N.W.2d 203 (N.D.1983); In Interest of D.S., 325 N.W.2d 654 (N.D.1982); Kleingartner v. D.P.A.B., 310 N.W.2d 575 (N.D.1981).

Pursuant to Section 27-20-44(1), N.D.C.C., the juvenile court may terminate parental rights if:

"a. The parent has abandoned the child;

"b. The child is a deprived child and the court finds that the conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm; or

"c. The written consent of the parent acknowledged before the court has been given."

Initially, Barbara contends that the juvenile court improperly admitted her written consent to termination into evidence because she did not acknowledge that consent at the termination hearing. In In Interest of R.A.S., 321 N.W.2d 468 (N.D.1982), we applied the Schuh v. Allery, 210 N.W.2d 96 (N.D.1973), rationale regarding admissibility of evidence in a non-jury case to parental termination proceedings. In this case the juvenile court acknowledged that Barbara had withdrawn her written consent and based its decision to terminate Barbara's parental rights on abandonment and deprivation and not upon that withdrawn consent. A careful perusal of the juvenile court's findings of fact and order indicates that it did not rely on the withdrawn consent to terminate Barbara's parental rights. Thus, we need not decide if the juvenile court erred in admitting the written consent into evidence because error, if any, would not be prejudicial.

Barbara contends that there was insufficient evidence presented to the juvenile court to clearly and convincingly establish abandonment or deprivation.

The evidence must clearly and convincingly establish abandonment or the elements of deprivation before the juvenile court may terminate parental rights on either of those basis. In the Interest of J.K.S., 356 N.W.2d 88 (N.D.1984); Pritchett v. Executive Director of Social Service Bd., 325 N.W.2d 217 (N.D.1982).

In Pritchett, supra, we discussed the requisite elements of abandonment within the context of the termination of parental rights in an adoption proceeding. See also Matter of Adoption of Gotvaslee, 312 N.W.2d 308 (N.D.1981). In Pritchett, supra, we said that an intent to abandon, which may be inferred from a parent's conduct, is necessary to establish abandonment and that abandonment is a question of fact. We also enunciated examples of conduct probative of abandonment including the parent's contact and communication with the child; the failure to pay support; the attitudes, conduct, ability, and other matters relating to the parent's duties, responsibilities, and care for the child; and the parent's presence, love, care, and affection.

Barbara asserts that the following conduct and contacts with Rhonda establish that she did not intend to abandon Rhonda: (1) her three trips to North Dakota to see Rhonda; (2) her contributions for Rhonda's support on a marginal income; (3) her monthly telephone calls to Social Services discussing her progress and concerns for Rhonda; and (4) her telephone calls to Rhonda. We disagree.

Barbara testified that while she was in Utah she returned to North Dakota three times. In August 1984 she returned to North Dakota for about one week and saw Rhonda once for approximately one hour. During Christmas 1984 Barbara returned to North Dakota for three weeks and saw Rhonda twice for approximately one hour each visit. In June 1985 Barbara returned for three or four days for her sister's wedding in Glendive, Montana, and saw Rhonda at the wedding rehearsal and reception. During that trip, Barbara and Social Services had made arrangements for Rhonda to meet Barbara at the bus station in Dickinson; however, Barbara got off the bus in Glendive and did not show up in Dickinson. Barbara also admitted that she never wrote or sent cards to Rhonda.

Barbara further testified that she telephoned Social Services regularly concerning her progress at the Job Corps and concerning Rhonda's well-being. Huwe testified that Barbara initially called Social Services monthly about her progress at the Job Corps and only occasionally asked about Rhonda. Huwe further testified that Barbara did not call Social Services after August 1985. Barbara testified that she did not remember the exact number of phone calls she made to Rhonda at the foster home. However, the foster parents kept a record of Barbara's telephone calls to Rhonda, and they testified that she called Rhonda seven times between April 1984 and ...